Danielson v. Goebel

• Decision Date: 02 March 1904
• Docket Number: 13,368
• Citation: 98 N.W. 819,71 Neb. 300
• Parties: FREDERICK DANIELSON v. JOHN J. GOEBEL
• Court: Nebraska Supreme Court

98 N.W. 819

71 Neb. 300

FREDERICK DANIELSON v. JOHN J. GOEBEL

No. 13,368

Supreme Court of Nebraska

March 2, 1904

ERROR to the district court for Cedar county: GUY T. GRAVES, JUDGE. Reversed.

REVERSED.

O. E Martin and W. A. Martin, for plaintiff in error.

C. H Whitney, contra.

KIRKPATRICK C. DUFFIE and LETTON, CC., concur.

OPINION

KIRKPATRICK, C.

On December, 26, 1901, defendant in error, John J. Goebel, instituted an action against plaintiff in error, Frederick Danielson, in the district court for Cedar county, to recover a commission alleged to be due him for services performed in finding a purchaser for certain land owned by plaintiff in error. There was judgment in the district court against plaintiff in error in the sum of $ 235 and costs; to reverse which the cause is presented to this court upon error. Numerous assignments of error are presented for consideration, but, in the view we take of the case, all need not be considered.

It is first contended that the court erred in overruling an objection interposed by plaintiff in error, at the commencement of the trial, to the introduction of any testimony, for the reason that the petition failed to state facts sufficient to entitle plaintiff below to any relief. In the petition it is alleged that on the 24th day of February, 1901, plaintiff in error wrote a letter to defendant in error in the language following:

"Emerson, Neb., Feb. 24, 1901. John J. Goebel, Dear Sir: You sell all my land. If you sell it you get good commission. I have it in three real estate man's hands and then in myself. Whoever sells it gets the commission. The Matsen place I want $ 40 an acre for 160, and $ 25 for 80 of pastor. Yours Truly, F. Danielson."

It is alleged that, on receipt of this letter, defendant in error went out and secured a purchaser for the tract designated as the Matsen land, and thereupon wrote plaintiff in error the following letter:

"Hartington, Neb. Feby. 25th, 1901. Fred Danielson, Esq., Emerson, Neb. Dear Sir: Your letter dated Feby. 24th, 1901, at hand & contents noted, just having a customer for a farm close to town, I at once proceeded to look him up, and read your letter to him, and he and his wife went and looked it over, and before he went home he called at my office and informed me that he would take it, and told me to send for the deed; that the money was ready for the land any time, and if you did not want to send the deed here, you could deposit it in a bank at Emerson and he would remit it there. He is a good reliable man, and is able to pay all cash. He deposited $ 500 in the bank as part payment of the purchase price subject to your order. Now please execute deed and do as above stated, instructing the bank to pay me my commission oblige. Respt. John J. Goebel."

It is further alleged that the purchaser was willing and ready to pay the money and complete the purchase, and that plaintiff in error and his wife refused to execute the conveyance; and that they promised defendant in error that they would pay him his commission, notwithstanding they did not make the sale. It is not alleged that any other writing was signed by either of the parties than the two letters quoted above, and the question for determination is: Are the facts pleaded, tested by the provisions of section 74, chapter 73, Compiled Statutes, 1901 (Annotated Statutes, 10258), sufficient to entitle defendant in error to relief. The section referred to is in the words following:

"Every contract for the sale of lands, between the owner thereof and any broker or agent employed to sell the same, shall be void, unless the...